"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, August 8, 2015

Judge Thomas J. McAvoy of the U.S. District Court for the Northern District of New York puts public in courtrooms in jeopardy in order to protect a bad judge

On July 24, 2015, the U.S. District Court for the Northern District of New York made brave new law by dismissing a federal lawsuit against Judge Kevin M. Dowd of Chenango County Supreme Court on the grounds of absolute judicial immunity.  See Case No. 3:15-cv-000370-TJM-DEP, Dkt. 15.

The lawsuit asserted in no uncertain terms that Dowd's conduct targeted in the lawsuit occurred after Dowd recused from a court case and in retaliation for having to recuse.

Moreover, the means of retaliation - knowingly using an armed Nazi sympathizer on a Jewish pro se indigent litigant to throw him out of "Dowd's" courthouse, once again, AFTER Dowd recused from the case and lost all judicial authority to be there, was not only disgusting, but a clear violation of the civil rights plaintiffs' due process rights.

The concept of judicial immunity, which was "implied" from prior history of immunity in the "old country" where there was no Constitution and where the absolute power (and its abuse) by the King and his servants were the reasons for American independence to begin with, is obviously unconstitutional judge-created self-serving protection to begin with.

Yet, even that concept, as declared by the judiciary, had boundaries - a judge is not protected by absolute judicial immunity for acts in clear absence of all jurisdiction.

What kind of jurisdiction does a judge have AFTER HE RECUSED from a case?

Logically and reasonably - none.

In the opinion of federal senior-status judge Thomas A. McAvoy of the U.S. District Court for the Northern District of New York, Dowd was still covered by absolute judicial immunity after he recused from the case for the following reasons:

1) "Defendant's action in ordering a belligerent litigant from a proceeding is certainly conduct arising directly from the litigation".  

       A.  Nowhere in the complaint is there any mention that the litigant was "belligerent".  Making a motion to recuse is not evidence of belligerence as a matter of law - as is any other rights exercised under the guarantee of access to court covered by the 1st Amendment (petitions clause) of the U.S. Constitution which Judge McAvoy was sworn to uphold.

     B.  On a motion to dismiss factual inferences must be made in favor of a non-moving party (the plaintiff), and the judge made an inference of "belligerence", the opposite inference, in favor of the defendant, a brother-judge.

     C.  Judge McAvoy mixes apples and oranges in admitting at the same time to conduct of Defendant "arising directly from litigation", from which Defendant already recused, and that Defendant still made an order pertaining to that litigation - from which, once again, he already recused and lost all authority to make any orders "arising from litigation" due to his recusal.

          In making his astonishing "arising from litigation" stretch of judicial immunity to cover misconduct, specifically, violent Antisemitic conduct, of a judge in retaliation for a motion to recuse AFTER he recused from the case, Judge McAvoy did pay the lip service to the existing case law that provided that the analysis of whether the act of a judge is an act of judicial nature covered by absolute judicial immunity, the court must analyze 

                 "the nature of the act itself, i.e., whether it is a function normally performed by a judge, 
                  and to the expectations of the parties, i.e. whether they dealt with the judge 
                  in his judicial capacity", citing to Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir., 2009).

      Throwing tantrums against parties who moved to recuse the judge, after recusal, is not a function "normally performed by a judge".

      A reasonable party does not and should not expect such a tantrum.

      And, after the judge recused from the case, he is no longer, cannot and is not authorized by law to act in any judicial capacity.

       In his analysis, Judge McAvoy skipped all of those points and misapplied the above rule in a way that I can only deem intentional, or due to Judge McAvoy age and necessity for retirement since he no longer can withstand the intellectual rigors his job requires.

       First, Judge McAvoy claimed that Dowd, in ordering removal of a plaintiff, after Dowd recused from the case and while plaintiff did absolutely nothing wrong and was not "belligerent" (there is nothing in the pleadings even suggesting that, so that part is Judge McAvoy's invention of part of the record, which is judicial misconduct in itself), engaged in judicial function.

       Here is what the alleged "judicial function" in ordering a known and armed Nazi sympathizer to throw a pro se indigent Jewish litigant from the courthouse AFTER the judge recused from the case and lost all power of control of the case, as presented by Judge McAvoy:

       "Controlling the behavior of parties at a proceeding at which a judge is presiding
        is certainly a function normally expected of a judge".

     Yes, Judge McAvoy, and the key words are "at which a judge is presiding".  That means, after recusal the judge is no longer "presiding" over court proceedings and cannot do anything in the proceedings or towards participants in the proceedings.

      Further, Judge McAvoy states this:

      "Since conflict with and among litigants occurs with some frequency in courtrooms
       and conferences, a judge also must sometimes order court staff to exercise control 
       over parties and avoid conflicts from escalating.  Such actions are certainly 
       an important and regular judicial function".

      Once again, Judge McAvoy twisted the facts in the complaint, and not in favor of the non-moving party, as he was bound by the law to interpret the pleadings.

      A judge ordering staff to exercise control over parties and "avoid conflicts from escalating" was, first, not a judge any longer in that particular case, but a lay person, was not presiding over any proceedings as a matter of law, and there was no conflict that needed to be prevented from escalating.

      Judge's own temper tantrum due to a motion to recuse that the judge granted cannot be, constitutionally, a legal basis for absolute immunity to be stretched beyond the recusal of the judge.

       Otherwise, whatever the judge does after recusal, no matter how bad, will be covered by judicial immunity.

       Think about it - Judge McAvoy just created a precedent by which Judge Dowd could order the armed Nazi sympathizer/court attendant to shoot down the pro se litigant, as Judge Dowd's way of preventing "a conflict from escalating".

      So, Mr. Shtrauch must be happy that he escaped with his life.

      As to other litigants appearing in courts covered by jurisdiction of the Northern District of New York, they must now be very afraid for their safety when considering to make motions to recuse, because now a judge, even if he recused, will be cloaked by absolute immunity even if he orders the insolent party who dared to request the judge's recusal to be shot dead - as a method of prevention of a conflict with a party from escalating.

       So - one, be very afraid.

       Two - shouldn't Judge McAvoy consider full retirement already?  

        Because, Judge McAvoy's sleep of reasons produced a monster that severely jeopardizes public safety in courtrooms:

    And all of that sleep of reason and mockery of the rule of law that insults any reasonable person's intelligence - for what, Judge McAvoy?  To protect one bad judge, whose behavior is getting more and more bizarre by the day, from inevitable accountability?


No comments:

Post a Comment